Ruling says federal courts can hear no-fly lawsuits

A federal appeals court has ruled that individuals on the government's no-fly …

A federal appeals court ruled this week that individuals who are blocked from commercial flights by the federal no-fly list can challenge their detention in federal court. A lower court had held that such lawsuits were barred by a federal statute limiting appeals of Transportation Security Administration decisions, but the U.S. Court of Appeals for the Ninth Circuit ruled that because the no-fly list is technically maintained by the FBI, rather than the TSA, that restriction did not apply.

The case involved a Malaysian woman named Rahinah Ibrahim who had studied at Stanford. When she attempted to fly from San Francisco to Malaysia, she was arrested at the San Francisco airport, handcuffed in front of her 14-year-old daughter, and driven to the police station to await questioning by the FBI. The FBI decided that it had no use for her and ordered her release two hours later. She was finally permitted to board another flight the next day.

The no-fly list reportedly contains the names of tens of thousands of individuals whose airline travel is restricted by the government. It is not to be confused with the longer selectee list and the much longer watch list—if your name is on these longer lists, you'll get extra scrutiny but you won't necessarily be prevented from flying.

Once one's name is on the no-fly list, getting off it can be maddening. In most cases, the government won't even confirm that an individual is on the list, much less do anything to help people get their names off it. Monday's ruling is a small victory for those with the misfortune to wind up on the list, because it allows them to bypass the TSA bureaucracy and go straight to federal court.

But allowing watch list detainees to sue doesn't mean they'll win. The courts have been reluctant to second-guess measures the government regards as essential for airline security. In 2006, for example, the Ninth Circuit rejected civil libertarian John Gilmore's lawsuit challenging the requirement that he show ID before boarding an airplane. A California trial court will now hear Ibrahim's arguments, but it may very well buy government officials' claims that publicly disclosing the details of its no-fly procedures would imperil national security.

The government's treatment of Ibrahim is a good illustration of the silliness of the government's watch list approach. As my colleague Jim Harper puts it, "watch listing and identification checking are like posting a most-wanted list at a post office and then waiting for criminals to come to the post office." If the FBI or TSA genuinely suspected that Ibrahim was a terrorist, they should have been actively investigating her and preparing to arrest her; as a Stanford student, she can't have been hard to track down. If she wasn't a terrorist—and by all indications, she's wasn't—then harassing her at the airport is a gratuitous infringement of her civil liberties. The no-fly list allows federal officials to act like they're "doing something" about terrorism without taking responsibility for actually investigating and charging terrorism suspects. But compiling massive lists of suspected terrorists, 99.9 percent of whom are not actual terrorists, isn't making us any safer.

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Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.